Since the advent of the Personal Information Protection and Electronic Documents Act, there has been uncertainty among lawyers, private investigators and insurers about what impact this law has on the litigation of private tort claims. There has been some guidance from the Ontario courts in the Ferenczy decision, but the law was still unsettled. The only case to address this, Ferenczy v MCI Medical Clinics, was all about whether information collected (allegedly) in violation of PIPEDA would nevertheless be admissible. The court concluded that PIPEDA does not apply to the collection of surveillance information by a PI to defend a court claim, but arguably that conclusion is obiter.

The Office of the Privacy Commissioner of Canada has taken the position that PIPEDA applies to insurers undertaking the defense of their insureds. This position has led to the conclusion that plaintiffs have a right of access, under PIPEDA, to the insurer’s files and perhaps some of those maintained by defence counsel. While PIPEDA does allow some collection of information, such as surveillance, without the consent of the individual in limited circumstances, the Commissioner has maintained (in a finding and in guidance to the industry) that this is only permissible where all other avenues of investigation have been exhausted.

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